In a previous posting, utahwaterlaw.com reported on concerns voiced by the Environmental Protection Agency (“EPA”) to the Utah Legislature over now-passed SB 110, titled “Water Quality Amendments,” which the EPA warned that SB 110’s peer review proposal violated the Clean Water Act(“CWA”). In a letter to the Utah Legislature, the EPA noted that SB 110’s plan to subject Utah Division of Water Quality actions to an independent peer review did not comply with the CWA. The letter further stated that if the law was passed without any changes, then the federal government might step in to manage water in Utah.

Peer Review Legislation Passes Despite EPA Warning

Despite a warning from the EPA, SB 110 was passed into law following the 2016 legislative session. SB 110 “establishes an independent peer review process for challenges made to proposals from the Division of Water Quality; and establishes the requirements, including selecting the panel of independent experts,” among other things.

With the passage of SB 110, Utah became the third state – joining Minnesota and California – to pass legislation on scientific review of administrative rulemaking. However, neither the legislation passed in Minnesota nor California, go nearly as far as SB 110. Essentially, SB 110 allows challenges of “pretty much any activity, rule, standard or initiative” from the Division of Water Quality or the Water Quality Board, said Walt Baker, DWQ director. “We’re breaking some ground here that has not been broken before,” he said.

Peer Review Legislation Allows “Pay-for-Play” Rulemaking

The primary impact of SB 110 is that it allows stakeholders to pay to challenge the science behind water regulations proposed by the Division of Water Quality. Once a decision is challenged, a three-person panel made up of scientists selected by both the challenging party and the Division of Water Quality determines whether the action is scientifically defensible. If the panel determines that the action is not scientifically defensible, then the Division of Water Quality may not be allowed to proceed on its rule.

Leland Myers, Central Davis Sewer District manager and the chief spokesman for the coalition of water managers who drafted the original bill, heralded the plan as one that would benefit citizens and make state regulators more thorough in their science.

“The biggest benefit is that it allows for a review and makes everyone a little more cautious to make sure they follow good science,” he said. “I think the bar is set high enough that it won’t be used frivolously.”

As noted, an especially important portion of SB 110 requires that those challenging the Division of Water Quality action to pay all expenses associated with the peer review, which is estimated to cost approximately $65,000 per year. This “pay-for-play” type rulemaking has created the most controversy, and has prompted some environmental groups to petition the EPA to block the “Water Quality Amendments.”

Environmental Groups Petition EPA Over Peer Review Legislation

Earlier this month, more than half a dozen environmental groups filed a petition asking the EPA to revoke Utah’s authority to administer portions of the CWA. In their letter, the groups, headed by Friends of the Great Salt Lake, told the EPA that the passage of SB 110 directly undermines the ability of the Division of Water Quality to enforce the CWA by way of the new peer review system. The letter argues that the law is a covert attempt to legalize “pay-for-play” rule-making, which the groups say impermissibly allows only those with deep pockets to challenge water quality decisions.

Rob Dubuc, an attorney with Western Resource Advocates, which is representing Friends of the Great Salt Lake, called the peer review statute unprecedented and offensive.

According to the petition, the statute violates federal law by creating potential scenarios where the peer review panel could trump federal mandates by restricting the public’s access to water-quality decisions and circumventing the judicial system.

EPA Can Overtake CWA Enforcment if DWQ is Unwilling or Unable to Fulfill Duties

The EPA authorizes the Division of Water Quality to oversee and enforce provisions of the CWA under what is essentially a contractual partnership. In the event the EPA determines that the Division of Water Quality is unwilling or unable to fulfill its responsibilities, the EPA may revoke the Division of Water Quality’s administrative authority and take over the management of CWA programs in Utah — including the authority to issue water quality permits.

There are currently only four states that have not delegated authority under the CWA, Baker said, and one of those — Idaho — is currently seeking delegation.

Utah Lawmakers Warned of “Gaps” in Peer Review Legislation

Baker said he warned lawmakers during the session that the statute had some “gaps relative to public participation” that had drawn scrutiny from the EPA. Baker said he hopes that the Division of Water Quality will be able to craft administrative rules to fill in the “holes” and appease both the EPA and the environmentalists.

Baker said he began drafting such rules while the statute was still being discussed, and has already shared them with some stakeholders. Baker expects to introduce the rules to the state Board of Water Quality next month.

But Duboc said he is skeptical that administrative rules will be able to go far enough to remedy the “fundamental flaws” of SB 110. The environmental groups he represents are not unhappy with the Division of Water Quality, Duboc said, and don’t necessarily believe the EPA would be any better at preserving Utah’s waters.

“No one wants EPA to come in and take over this program,” Duboc said. “EPA doesn’t want that, the state doesn’t want that, and we don’t necessarily want that, but this legislation backs us into a corner. … One way or the other, this peer review panel has to go away. If that takes the EPA coming in and running the program, so be it.”

While it is unclear whether the environmental groups would support the Division of Water Quality action challenge process without the pay-for-play provision, it is clear that as it stands currently, the “Water Quality Amendments” are not amenable. The environmental groups’ petition raises the question whether it is fair to allow only those that can afford it can challenge water quality decisions, or if the legislation was passed to allow rich companies or other potential polluters to pay for scientific peer review of water quality actions. The EPA has said that is has received the petition and is in the process of reviewing the petition. Utahwaterlaw.com will continue to follow this story as it unfolds.